Amrendra Nath Mishra, aged about 77 years, son of Late N.N. Mishra, residing at v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4488 of 2023 Amrendra Nath Mishra, aged about 77 years, son of Late N.N. Mishra, residing at Ahilya Nivas, Dengalpara, P.O. & P.S.- Dumka, Dist- Dumka. Versus …. Petitioner 1. Sainik School Society, under the Ministry of Defence, Govt. of India, P.O. & P.S.- Sena Bhawan, New Delhi. 2. The Chairman, Board of Governor, Sainik School Society, under the Ministry of Defence, Sena Bhawan, New Delhi. 3. Chairman, Local Board of Administration, Sainik School Society-cum- General Officer Commanding, M.P., Bihar & Orissa Area, District- Jabalpur. 4. The Principal, Sainik School Tilayia, P.O. & P.S.- Tilaiya Dam, District- Koderma. ------ …. Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK For the Petitioner ------ : Mr. Sudarshan Shrivastava, Advocate Mr. Sunil Singh, Advocate For the Respondents : Mr. Anil Kumar, ASGI Mr. Abhijeet Kumar Singh, CGC ----- 15 / 20.12.2024 Heard the learned counsel for the parties. 2. The petitioner has thrown challenge to the order dated 03.07.2023 passed by the respondent no. 4, by which he has been dismissed from service, without the benefit of pension. After quashment of the dismissal order, the petitioner has prayed for entire back wages including pensionery benefits. The Facts 3. Bereft of unnecessary details, what has been emerged from the records, are that based on the news report regarding leakage of Hindi and Mathematics Entrance question paper, 1996 of Sainik School, Tilaiya, an enquiry was conducted and only after serving the notice to the petitioner, he was dismissed vide order dated 14.11.1996. Appeal preferred thereagainst was also dismissed vide order dated 19.05.1998. Challenging the said orders, the petitioner preferred CWJC No. 1587 of 1998 (R). This Court by order dated 16.09.1998 while disposing of the same, has been pleased to quash and 1 set aside the impugned orders and liberty was given to the respondents to proceed departmentally against the petitioner adopting due procedures. Pursuant thereof, fresh proceeding was initiated, which also resulted in passing of the order of dismissal dated 21.10.2000. Aggrieved thereby, the petitioner preferred appeal on 6.11.2000. After five years from the date of filing of the appeal, when neither any decision was communicated about the fate of the appeal nor the petitioner was allowed to join, the petitioner moved
Legal Reasoning
this Court in W.P.(S) No. 1272 of 2005. In the said writ petition, by way of counter affidavit, it was brought to knowledge of the petitioner that his
Decision
appeal was disposed of by order dated 24.01.2005 and an enquiry committee was constituted to enquire the matter afresh. The petitioner further could gather from the documents enclosed with the counter affidavit that new Court of Inquiry was constituted by order dated 15.04.2005. It is further case of the case of petitioner that during pendency of W.P.(S) No. 1272 of 2005, he stood retired and, therefore, on such date, there is no penalty attributed against the petitioner. It may also be stated herein that for the same set of charges, the petitioner was also proceeded in the criminal trial, which resulted in acquittal of the petitioner from the charges. The said judgment was passed in Cr. Appeal No. 89 of 2009, decided on 25.05.2015. W.P.(S) No. 1272 of 2005 was finally disposed of on 10.1.2017, with direction to the appellate authority to decide the appeal within three months. Since at the relevant time i.e. on 10.01.2017, the stage of the departmental proceeding is pending with the fresh Court of enquiry and the appeal was already decided by order dated 24.01.2005, the petitioner preferred Civil Review No. 41 of 2019 for modification of order passed in W.P.(S) No. 1272 of 2005. Thereafter, vide order dated 01.10.2020, the order was modified and direction was issued to the disciplinary authority to pass a fresh order on the findings returned by the Court of Inquiry. It is further stated that the respondent-School preferred L.P.A. No. 96 of 2021 challenging the order dated 01.10.2020 in Civil Review No. 41 of 2019 and the same was dismissed as withdrawn. Thereafter, in fresh Court of Inquiry, fresh show cause notice was issued on 8.4.2023 asking the petitioner to submit his reply, that too without enclosing any document, as it is reflected from the show 2 cause notice itself. The petitioner submitted a detailed reply stating therein that the alleged leakage of question papers from Nawada centre is baseless and just to save the Principal of the school, who was custodian of the box of question papers, he has been made scapegoat. However, upholding the earlier order of dismissal, the petitioner was again dismissed from service by order dated 03.07.2023, which is under challenge in the present lis. Submissions of learned counsel for Petitioner 4. Mr. Sudarshan Shrivastava, learned counsel assisted by Mr. Sunil Singh, learned counsel for the petitioner assiduously assails the impugned order and argues that the same is not sustainable either in facts or in law, inasmuch as, the punishment order cannot be issued with retrospective effect, upholding the earlier order of dismissal dated 21.10.2000. Learned counsel submits that once initial order of dismissal dated 14.11.1996 has been quashed and set aside by this Court vide order dated 16.09.1998 in CWJC No. 1587 of 1996 and in the light of appellate order dated 24.10.2005 coupled with the orders passed by this Court, there was no occasion for the respondents to pass the order impugned upholding the earlier order of dismissal dated 21.10.2000. Learned counsel further argues that the punishment inflicted upon the petitioner is not prescribed under the statutory rules, which governs the field of service conditions of the petitioner. He refers to sub-clause (v) of clause (b) of Rules 10.01 under Chapter-X of the Sainik Schools Society Rules and Regulations, whereby punishment of ‘dismissal from service, which will be disqualification for future employment in Sainik Schools’ has been prescribed. Learned counsel submits that contrary to the prescribed punishment in the Rules, the petitioner has been inflicted the punishment of ‘dismissal from service, without the benefit of pension’. In support of his contention, learned counsel relies on the judgment of the Hon’ble Apex Court in the case of Vijay Singh Vs. State of U.P. & Ors., reported in (2013) 5 SCC 242. 5. Learned counsel further submits that it is a case of leakage of question papers of Sainik School Entrance Examination and the petitioner was initially dismissed from service in the year 1996. The matter has travelled before this Court in several litigations and finally in compliance of 3 order dated 10.01.2017 passed in W.P.(S) No. 1272 of 2005, coupled with the appellate order dated 24.01.2005, fresh Court of Inquiry submitted its report on 08th November, 2017 (at Annexure-R/10 to the rejoinder), which reflects that due to security violation at the ends of the petitioner, charge of leakage of question papers could be attributed. It is also reflected that documentary evidence does not support the charge, but due to circumstantial evidence, the charge could be attributed. Referring to the enquiry report, learned counsel submits that there is no direct evidence or documentary evidence on record to connect the petitioner in the alleged leakage of question paper and merely on the basis of circumstantial evidence, the petitioner cannot be made to suffer, that too with a capital punishment. Mr. Shrivastava further submits that the information regarding leakage of question paper was come for the first time from the mouth of one Manoj Kumar and surprisingly said Manoj Kumar has not been examined during the course of proceeding, which seriously prejudiced the case of the petitioner. Learned counsel submits that considering these aspects of the matter, the petitioner has been acquitted by the competent Court of criminal jurisdiction, which gets fortified by the laws laid down by the Hon’ble Apex Court in the case of Union of India & Ors. Vs. Prakash Kumar Tandon, reported in (2009) 2 SCC 541. 6. Referring to the entire chain of facts and circumstances of the case, learned counsel submits that the petitioner is entitled for pensionery benefits, as the petitioner was never under suspension nor there was any punishment existing before the date of superannuation of the petitioner. To fortify this stand, learned counsel submits that in view of order passed by this Court in Civil Review No. 41 of 2019 coupled with the order dated 24.01.2005 passed by the appellate authority, wherein new Court of Inquiry was ordered to be constituted, the original order of dismissal dated 21.10.2000 passed by the disciplinary authority cannot be treated in existence and it can be said that at that time, there was no punishment order against the petitioner. 7. To sum up, learned counsel submits that the impugned order has been passed without considering the findings of the Court of Inquiry and without considering the acquittal order passed in Criminal Appeal No. 89 of 4 2009 and there are several procedural lapses on the face of record, the impugned order is fit to be quashed and set aside. Arguments advanced by learned counsel for Respondents 8. Per contra, Mr. Anil Kumar, learned ASGI representing the respondents argues that in compliance of the order passed in Civil Review No. 41 of 2019, the disciplinary authority adopting all the procedures as per Sainik Schools Society Rules and Regulations, 1997 and after obtaining approval from the competent authority, passed the impugned order of dismissal on 3.7.2023. Reiterating the factual aspect, learned ASGI submits that earlier the petitioner was dismissed from service on 14.11.1996 on the allegation of leakage of question papers of entrance examination. The appeal preferred there-against by the petitioner was also rejected on 29.11.1996. Though the said order of dismissal was quashed and set aside by this Court in CWJC No. 1587 of 1998(R), but liberty was given to the respondents to proceed after making fresh inquiry. Pursuant thereto, the petitioner was reinstated in service on 22.09.1998 and a fresh Court of Inquiry was constituted, which proved the charge of leakage of question paper against the petitioner and the petitioner was again dismissed from service on 21.10.2000. The petitioner thereafter preferred appeal and also moved this Court in W.P.(S) No. 1272 of 2005. Learned ASGI further points out that the matter was further enquired into by fresh Court of Inquiry and the report dated 8.11.2017 is annexed as Annexure-F to the counter affidavit. Learned counsel submits that in the fresh Court of Inquiry, the charge was found to be proved and it was concluded that there was gross security violation in conduct of the petitioner and circumstantial evidences goes to show that leakage of question papers could be attributed against the petitioner. Learned ASGI submits that based on the report of the enquiring Court, the petitioner was again dismissed by order dated 03.07.2023 upholding the earlier order of dismissal dated 21.10.2000 with the approval from the competent authority. Learned ASGI further submits that from the date of initial dismissal order dated 21.10.2000 and till the fresh order of dismissal dated 3.7.2023, the petitioner stood retired and as such, the petitioner was not entitled for pensionery benefits. Relying on the celebrated judgment rendered in the case of Mahanadi 5 Coalfields Ltd. v. Rabindranath Choubey, (2020) 18 SCC 71 : 2020 SCC OnLine SC 470, learned ASGI submits that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement. As such, there is no illegality / infirmity in the impugned order of dismissal dated 3.7.2023 upholding the earlier dismissal order dated 21.10.2005. Findings of the Court 9. This Court has taken anxious considerations of the arguments advanced by the learned counsel for parties and perused the records. Admittedly, the petitioner was earlier dismissed by order dated 14.11.1996 with the allegation of leakage of question paper of entrance examination of Sainik School, Tilaiya. It is not in dispute that the dismissal order as well as appellate order was quashed and set aside by this Court in CWJC No. 1587 of 1998(R), with liberty to proceed adopting proper procedure according to law. Once again, without following the proper procedure, the petitioner was dismissed from service vide order dated 21.10.2000. It is further revealed from the records that the petitioner has again challenged the dismissal order dated 21.10.2000 in W.P.(S) No. 1272 of 2005 and the same was disposed of on 10.01.2017, with direction to the appellate authority to dispose of the appeal within three months, as the appeal of the petitioner was still pending. Thereafter, when it came to know that already the appeal preferred by the petitioner challenging the dismissal order dated 21.10.2000 was decided by the appellate authority vide order dated 20.07.2004, a review application, being Civil Review No. 41 of 2019 was preferred by the petitioner. It further reveals from the order dated 1.10.2020 passed in Civil Review No. 41 of 2019 that the order passed in W.P.(S) No. 1272 of 2005 was modified to the extent that the disciplinary authority shall pass a fresh order in view of finding of the Court of enquiry. 10. Here, the report of fresh Court of enquiry dated 19.06.2017 needs to be discussed. From the report, it appears that the petitioner was In- charge of Nawada Centre, Sainik School Tilaiya Entrance Examination, 1996 and it was duty of the petitioner to handover the sealed box of question papers to the Centre Superintendent. It was alleged that by leaving the box 6 unattended in the hotel room, the petitioner along with Ram Sharan Prasad Singh went out of the hotel for meals and shopping. It was also alleged that without verifying the counter check with regard to the security of box, containing question papers, the petitioner had broken the seal and kept the box in his custody. It was also stated in the report that it could not be ascertained that as to whether leakage of question papers could have taken place at any of the centres in Bihar and Jharkhand. It was also stated in the report that a certificate was issued by the Centre Superintendent, Nawada that for all three parts of examination, where DM/DC and DEO as well as petitioner being the In-charge examination have certified that at the time of commencement of the examination, all question papers packets seals were intact, which goes to prove that tempering of question papers packets was not done prior to the packets being opened before the examination. Despite these findings, the Enquiring Committee in concluding portion has opined that there was gross security violation on the part of the petitioner on the basis of circumstantial evidence which goes to prove that the leakage of question paper could be attributive to security lapse at Nawada Centre. From perusal of the record, which is also reflected in order dated 10.01.2017 passed in W.P.(S) No. 1272 of 2005 that the information regarding leakage of question paper was firstly came from the mouth of one Manoj Kumar, but said Manoj Kumar was not examined in the case, which seriously prejudiced the case of the petitioner and no explanation whatsoever has been recorded in the enquiry report. The Enquiring Authority while coming to the guilt of the petitioner has considered the irrelevant facts and ignored the relevant aspect of the matter that as to when, the Centre Superintendent has certified in presence of the District Magistrate and District Education Officer that at the time of commencement of the examination, seals of all question paper packets were intact, as also the witness from whose instance, it has come to the notice of all concerned about leakage of question papers, has not been examined to prove the case. 11. It appears that the entire Court of inquiry is contradictory to one to other findings and based upon contradictory enquiry report, the order of dismissal could not be sustained. In M.V. Bijlani v. Union of India [(2006) 5 7 SCC 88, the Hon’ble Apex Court held that the enquiry officer while performing quasi judicial function must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. The relevant paragraph-25 is profitable to quote herein as extensor:- “25. … Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 12. From perusal of the entire charges, it could hardly be alleged against the petitioner that the act of negligence, inadvertence or unintentional could be attributed against the petitioner for leakage of question paper, if any, and for such act, the integrity of the petitioner cannot be doubted. Even the Enquiring Committee has opined that there was circumstantial evidence to connect the petitioner in the alleged charge and there was no documentary evidence to connect him in the episode. Law is well settled that in a domestic inquiry, the Department has to prove its case. In such cases, where the charges, if proved, may lead to the imposition of a major penalty, then it is the bounden duty of the Department to prove their case before the Inquiry Officer by leading evidence, particularly, oral evidence, by production of witnesses in support of charge. Admittedly, in the present case, no witness has been examined in order to substantiate the charge levelled against the petitioner and the findings have been recorded on the basis of circumstantial evidence. As such, the inquiry report is held to be flawed. 13. Law is also well settled that oral testimony in an inquiry involving imposition of a major penalty is a salutary requirement that cannot be given a go-by. Reference in this connection may be made to the decision 8 of the Supreme Court in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, where it has been held: “14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” 14. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. Only on the basis of circumstantial evidence, the petitioner has been dragged unproportionately for 25 long years, which has caused so much problems to the petitioner. There is nothing on record to show as to whether the alleged delinquency would fall within the ambit of misconduct for which disciplinary proceedings could be initiated. 15. There is legal maxim ‘nulla poena sine lege’ which connotes that a person should not be made to suffer penalty except for a clear breach of existing law. Herein, the petitioner has been punished with the punishment, which is not prescribed under the Rules and Regulations of Sainik School. The major punishment of dismissal from service, with stipulation of disqualification for future employment in Sainik Schools is prescribed, whereas the petitioner, contrary to the prescribed rules, has been inflicted with the punishment of dismissal from service without the benefit of pensionery benefits. The similar issue fell for consideration before the Hon’ble Apex Court in the case of Vijay Singh (supra). The paragraph nos. 16 and 17 are profitable to quote herein:- “21. Undoubtedly, in a civilised society governed by the Rule of Law, the punishment not prescribed under the statutory 9 to rules cannot be imposed. Principle enshrined in criminal jurisprudence legal maxim nulla poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law. is prescribed this effect the in 22. In S. Khushboo v. Kanniammal [(2010) 5 SCC 600 : (2010) 2 SCC (Cri) 1299 : AIR 2010 SC 3196] this Court has held that a person cannot be tried for an alleged offence unless the legislature has made it punishable by law and it falls within the offence as defined under Sections 40, 41 and 42 of the Penal Code, 1860, Section 2(n) of the Code of Criminal Procedure, 1973, or Section 3(38) of the General Clauses Act, 1897. The same analogy can be drawn in the instant case though the matter is not criminal in nature.” 16. I also find force in the submission of the learned counsel for the petitioner that at the time of retirement, there was no punishment at all against the petitioner. Once the appellate authority while disposing of the appeal, which was filed against the dismissal order dated 21.10.2000, has ordered for reconstitution of new Court of Inquiry, it could safely be said that the order of dismissal dated 21.10.2000 was not in existence as on 24.01.2005. Since the order of dismissal dated 21.10.2000 was not in existence, the impugned order dated 3.7.2023 upholding the earlier dismissal order dated 21.10.2000, i.e. with retrospective effect, is not sustainable in law and the petitioner is entitled for retiral benefits, as the petitioner was illegally restrained from rendering his services with effect from 21.10.2000. 17. The issue as to whether the employee is entitled for back wages after quashing of the impugned order of illegal termination / dismissal, fell for consideration before this Court in the case of Shobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Ltd., (2016) 16 SCC 663, wherein it has been held as follows:- 3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1-1- 2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1-1- 2003 to 31-12-2005, the respondent cannot be allowed to press the 10 self-serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”. 18. Further the Hon’ble Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 held that “where termination / retrenchment order was held to be illegal and invalid, the employee is entitled for back wages”. 19. It has also been brought on record that for the same set of charges, the petitioner was tried by a competent Court of criminal jurisdiction, wherein the petitioner was acquitted of the charges, as it appears from the judgment passed in Criminal Appeal No. 89 of 2009. This aspect has also not been considered by the respondents while awarding the impugned punishment. 20. The judgment cited by the learned counsel for the respondents in the case of Mahanadi Coalfields Ltd. (supra) is not applicable in the facts of the case, inasmuch as, there is no quarrel that once the departmental proceeding is initiated, the same should be concluded by its logical end, even if the employee has reached the age of superannuation. Herein, the contention of the learned counsel for the petitioner is not that after superannuation, the continuance of departmental proceeding and infliction of capital punishment is bad in law, rather, it is the case of the petitioner that without considering the findings of the Court of Inquiry and there is procedural lapses in conducting the enquiry, the petitioner has been awarded the punishment of dismissal, that too with retrospective effect, which is not sustainable in the eyes of law. 21. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncement, the impugned order dated 3.7.2023 is hereby quashed and set aside. The respondents are directed to extend the pensionery benefits to the petitioner along with all consequential benefits, preferably within a period of six weeks from the date of receipt/ production of a copy of this order. 22. Resultantly, the writ petition stands allowed. R.Kr. (Dr. S. N. Pathak, J.) 11